Overfederalization? What overfederalization?

Susan Klein, a law professor at the University of Texas, wants you to know that all these claims that criminal law has been over-federalized is just a bunch of bunk. In a paper to be published in the Emory Law Journal in September, Ms. Klein posits that even though the number of federal crimes on the books have increased dramatically and even though federal caseloads continue to rise, most of the cases on the courts' dockets are dope and immigration cases.

Now, before we go any further, it might behoove y'all to know that Ms. Klein is a professor of criminal law at UT-Austin (hard to believe that the law school tucked right behind the 40 acres would dirty its hands with that type of law, isn't it) and she teaches a seminar with the chief AUSA for the Austin Division of the Western District of Texas on how to prosecute federal offenses.

The program places students as interns in the US Attorney's Office in Austin where they must learn all the wonderful ways in which the Federal Rules of Criminal Procedure reduce most federal prosecutions to pleading guilty and trying to get a downward deviation on the sentencing guidelines that are supposed to be advisory.

Training them as prosecutors in the federal courts will give them good experience in pleading their clients out once they step into a courtroom. No need to risk a long sentence when we can just plead guilty and negotiate on the time, huh? You didn't do it? Are you kidding me? If you want the judge to be lenient you have to take responsibility for your actions. Look, if you aren't willing to take my advice and plead this case out today, I think I might just need to withdraw because you are just impossible to work with.

But I digress.

The federal courts are the proper bailiwick for immigration matters. But, unless I'm mistaken, most every state in the union has laws on the books making it a crime to possess marijuana, narcotics or other controlled substances. Even if Joe Blow is trying to take his trunkload of coke across the Sabine into Louisiana, he's violating the laws of at least two states. No need for los federales to get involved - just let Texas or Louisiana charge him.

The same holds true for most federal crimes. There is absolutely no need to prosecute people on federal charges when the state is more than capable of filing the case.

I once represented a man on a motion to revoke probation in a dope case. He was riding in a car with a man who was being investigated by the feds for smuggling dope. The pair was arrested and charged with possession of a controlled substance by a local law enforcement agency. After he plead out and was placed on probation (first attorney), he was then indicted by the feds for the same exact conduct. His attorney in the federal case pled him out and he went to prison for a few years. While in federal prison he, understandably, missed a few meetings with his probation officer, didn't do his community service and fell behind in his child support payments. Once he was released from federal prison he was served with a motion to revoke his probation.

It was beyond absurd. And, since the charges were filed by the state and by los federales, double jeopardy did not attach. There was no need for the feds to get involved. He was already being punished for his conduct.

The federal criminal (in)justice system has gotten much too big for its britches. If a crime can be properly charged in a state court for the alleged conduct, the feds don't need to be involved. If that means there isn't as much a demand for AUSAs, I'm sure there are some misdemeanor and felony courts that could use someone to handle the mass pleas on Monday mornings.

H/T Doug Berman